Congressional Oversight is not Overreach

While the scope of Federal power has expanded beyond the ken of the Framers, this is not an example.

Frank Miele weighs in on the side of the Trump administration in its fight against Congressional subpoenas, arguing that the very concept of “oversight” is a wild expansion of the Constitutional balance of power.

The fact of the matter is that under our constitutional system of checks and balances, the presidency has a certain independence from the Congress, just as Congress has a certain amount of independence from the president. Presidential independence is usually called executive privilege.

In the current confrontation, Congress has issued numerous subpoenas to either force testimony from executive office employees (including the president’s former lawyer Don McGahn) or to obtain documents such as the private tax returns of citizen Donald Trump or the underlying evidence that Special Counsel Mueller obtained in his two-year investigation. There is substantial reason to believe that most if not all of those subpoenas violate executive privilege, yet Democrats have publicly declared that the president’s legal defense of his privacy and his presidency amounts to a coverup.

[…]

[T]he Constitution does not make clear anything about oversight responsibility. The theory of oversight responsibility in entirely the creation of the judicial branch and is not found anywhere within the four corners of the Constitution. Article I, Section 8, of the Constitution spells out the affirmative powers of Congress, mostly in rather restrictive, finite terms. Congress can borrow money. Congress can establish Post Offices. Congress can punish piracy. Congress can declare war. That sort of stuff. Nothing remotely close to oversight.

That’s because oversight is a so-called “implied” power — not to be confused with an “imaginary” power. It derives, we are told, from the “necessary and proper” clause included at the end of Article I, Section 8. That is also called the “elastic clause” because it has been stretched every which way to expand the power of Congress beyond recognition. Here is the full foundation on which the “oversight powers” of Congress rests:

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Search as you will through the “foregoing powers,” however, you will not find any reference to anything remotely like oversight of the executive branch. As a matter of fact, there is absolutely no reference to the executive branch or the president in any of the preceding 17 clauses. Therefore, it cannot be “necessary and proper” for Congress to exercise oversight, nor ultimately does the power “to make all laws” needed to enforce congressional authority have any relevance to the desire of Congress to investigate the president’s private life and business.

–RealClearPolitics, “Constitutional Oversight? Or Unconstitutional Overreach?

This is a bizarre argument.

While I’m quite sympathetic to Miele’s larger point (and Dave Schuler’s expansion on that point) that our Federal government has taken on a much broader set of powers than envisioned by the Framers, Congressional oversight over executive agencies is both specifically described in the Constitution and naturally flows from its assigned duties.

Article I, Section 8 lays out the specified powers of the Congress:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the Supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

It closes with the Necessary and Proper Clause:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. [emphasis added]

So, first and foremost, the Necessary and Proper Clause is much broader than Miele’s selective quotation suggests. In addition to the rather extensive list that precedes it (“the foregoing Powers”), it applies to “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This is the essence of oversight; the mere fact that the word itself isn’t listed is irrelevant.

Beyond that, as the nation grew larger and more complex, Congress began creating Executive agencies to carry out its duties. Most obviously, we maintained an Army and, with a short hiatus, a Navy (and its Marine Corps). But also a Justice Department, Treasury Department, postal service, and Transportation Department. These are administrative units, under the direction of the President, for carrying out Congress’ specified tasks.

It would be absurd, indeed, to concede that Congress has the power and responsibility to create these departments to execute the very duties the Framers assigned to it and at the same time argue that, in doing so, it lost all right to maintain accountability over said agencies. Doing so is oversight.

Now, this power is not absolute. The courts have long recognized that there is such a thing as “Executive privilege”—even though it is nowhere mentioned in the Constitution. It’s simply obvious that the President has a right to have candid conversations with his top advisors without interference from other branches of government.

But privileges are always subject to balancing tests. The confidentiality between attorneys, physicians, and clergymen and their clients predates the Republic and is generally considered sacrosanct. But a professional’s duty to society can sometimes outweigh their duty to the client. So, for example, knowledge of an impending violent crime is exempt from that privilege; we require that information be shared with appropriate authorities.

I’m insufficiently expert on the law to have a strong opinion on all of the subpoenas Congress has issued vis-a-vis Trump and his administration. Most of them seem clearly lawful in exercise of Congress’ oversight function, while some of them strike me as overreach absent an impeachment proceeding. Adjudicating such disputes is why we have a judiciary.

But the notion that oversight per se is unconstitutional is cuckoo.

FILED UNDER: Congress, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Dave Schuler says:

    Let’s be more specific, James. How is Congress’s delegation of its powers under the Constitution to executive branch departments through “fill in the blanks later” provisions” common in federal laws these days necessary or proper? I don’t think it’s either.

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  2. Dave Schuler says:

    Or take subpoena power. The Congress has no authority to subpoena executive branch work product. That’s a judicial branch power. The Congress needs to petition the court which would need to find a legitimate legislative reason to issue the subpoena. The Court tends to be pretty accommodating to the Congress in that regard. That’s what “necessary and proper” means. It’s not a “get out of jail free card” that the Congress waves whenever it wants to do something.

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  3. James Joyner says:

    @Dave Schuler: Despite the schoolboy civics notion of “co-equal branches,” it’s rather obvious that the Framers intended Congress to be far and away the most powerful actor. Almost all real power is delegated to Congress. The imperial presidency is a modern advent, a function of the creation of a massive bureaucracy and the existence of a very large standing military, both of which the President effectively commands.

    The courts have deferred to Congress to determine what’s “necessary and proper” since nearly the beginning of the Constitutional era. As FindLaw’s Annotated Constitution explains,

    That this clause is an enlargement, not a constriction, of the powers expressly granted to Congress, that it enables the lawmakers to select any means reasonably adapted to effectuate those powers, was established by Marshall’s classic opinion in McCulloch v. Maryland. 1642 ”Let the end be legitimate,” he wrote, ”let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.” 1643 Moreover, the provision gives Congress a share in the responsibilities lodged in other departments, by virtue of its right to enact legislation necessary to carry into execution all powers vested in the National Government. Conversely, where necessary for the efficient execution of its own powers, Congress may delegate some measure of legislative power to other departments. 1644

    McCulloch was decided in 1819.

    That a legislature has the right to issue subpoenas to inform legislation is not especially controversial. The Supreme Court settled the matter nearly a century ago in a case called McGrain v. Daugherty, ruling:

    A legislative body cannot legislate wisely or effectively in the absence of information
    respecting the conditions which the legislation is intended to affect or change; and where
    the legislative body does not itself possess the requisite information—which not
    infrequently is true—recourse must be had to others who possess it. Experience has
    taught that mere requests for such information often are unavailing, and also that
    information which is volunteered is not always accurate or complete; so some means of
    compulsion are essential to obtain that which is needed. All this was true before and
    when the Constitution was framed and adopted. In that period the power of inquiry—with
    enforcing process—was regarded and employed as a necessary and appropriate attribute
    of the power to legislate—indeed, was treated as inhering in it. Thus there is ample
    warrant for thinking, as we do, that the constitutional provisions which commit the
    legislative function to the two houses are intended to include this attribute to the end that
    the function may be effectively exercised.

    Where the rubber meets the road, though, is when the executive branch pushes back, citing privilege. Then, Congress utilizes its powers, including ruling people in contempt of Congress, in an attempt to coerce testimony. When all else fails, they go to court. Lawfare has a decent primer on the subject.

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